48 La. Ann. 835 | La. | 1896
Lead Opinion
ON Motion to Dismiss.
The opinion of the court was delivered by
Appellee has moved to dismiss the appeal in this •case on the ground that it appears on the face of the papers and record that the matters and things propounded in the pleadings and issues determined are not appealable to this court; that the alimony pendente lite demanded by a married woman in an action for separation from bed and board is not in its nature within the jurisdiction of this court. That the decree below is interlocutory and for less than two thousand dollars, and does not cause irreparable injury.
In April, 1874, the present plaintiff, the wife of the defendant, instituted a suit in the District Court for the parish of Orleans, in which she averred that her husband had abandoned the matrimonial domicil and had refused, and persistently refused, to support her, without justification or excuse. That he had ample means and expended the same for his own gratification and pleasure, while she was in necessitous circumstances and forced to rely upon friends for support and maintenance. The prayer of her petition was that de
On November 25, 1891, plaintiff brought a second suit against her husband. In her petition she recited the facts connected with the former litigation and its results and reiterated the allegations contained in her petition in the first suit. She averred that she was entitled to a judgment of separation from bed and board to date from
Upon considering this petition the District Judge ordered that the residence of plaintiff’s mother, at Ohurch Hill, Jefferson county, Mississippi, be assigned to her as her domicile pending the proceedings.
The defendant, among other causes, excepted: That plaintiff’s petition disclosed no cause of action. That the court was without jurisdiction when plaintiff, for over twenty years, had been a nonresident of the State. That the court was without right, power or authority to fix the domicile of plaintiff outside of the State and the jurisdiction of the court — the intent of the law being that both the court and plaintiff should have plaintiff under their eye.
That the plaintiff had no right to have a domicile or residence outside of the State and yet demand alimony, as it was impossible for
In reference to the particular question of alimony he averred that at the time plaintiff alleged she was in want she was living under the roof of one of the relatives of defendant, and was cared for as well as she could be, and during that time he was absent from the State seeking work. That he was poor, with limited means, and never had been a man of much means — that at the moment of filing his answer she had more means and lived in greater luxury than he did. That the plaintiff had no need of alimony and was well-to-do, and thar. her demand was made with a view to enable her to live in the luxury and comfort which comported with the wife of a wealthy man, when in truth she was the wife of a very poor man. That he was willing to have the plaintiff return to him if she were willing to return and live as became his means, which was less than one hundred dollars per month. That he stood ready to support and care for the plaintiff, and had always been willing to do so; but that she demanded more than he could give, and that if she 'was willing to accept what the defendant could give, he was willing to give to the full limit of his means, and whenever the plaintiff would come he would provide for and receive her. He prayed that- plaintiff’s demand be rejected. .
In February, 1895, plaintiff suggesting that the cause was fixed for trial, and that she was present in New Orleans to attend the same, the court assigned as her residence the Christian Woman’s Exchange.
On the 2d April, 1895, the District Oourt reciting that the cause had been tried upon its merits and submitted for adjudication upon due consideration of the law and the evidence, considering for reasons orally assigned that the plaintiff had failed to make the proof of abandonment required by Art. 145, O. 0., and that there was therefore nothing on which to base the ancillary judgment of alimony prayed for, ordered, adjudged and decreed that plaintiff’s demand
On June 4, 1895, counsel of plaintiff suggesting the decree of the Supreme Oourt remanding the cause — the petition on file and the evidence before taken, and that plaintiff had no income for her maintenance during her suit for separation — that she resided at the domicile assigned her by the court — that her husband could well afford her one hundred dollars per month and was abundantly able so to do, obtained a rule upon defendant to show cause why alimony should not be paid her at one hundred dollars per month as prayed for in her petition on file, during her suit for a separation, and why execution should not issue therefor. This rule coming on for trial on June 21, 1895, the court ordered it to be dismissed for want of jurisdiction. On the 25th of June, 1895, plaintiff, averring that her health was impaired, prayed that during the recess of the court she have assigned as her residence that of her mother at Ohurch Hill, Jefferson county, Mississippi, or at her brother’s in Baton Rouge. The court declined this application, declaring it had no power to assign to plaintiff a residence outside of the parish of Orleans.
The action of the District Oourt dismissing plaintiff’s rule for alimony for want of jurisdiction was evidently based upon the fact of the pendency of the appeal in the Supreme Oourt from the prior judgment in the case, for on June 24 the rule was renewed upon counsel for plaintiff suggesting that the decree of the Supreme Court in the matter of that appeal h-ad become final. In July, 1895, Judge King, acting in the place of Judge Théard, absent (upon submission to him of a certificate of a physician declaring a change of climate and location was necessary)', signed an order authorizing the plaintiff to absent herself from her assigned domicile until the reopening of the court in November -r she holding herself, at all
On the 20th of January, 1896, the District Court rendered judgment upon the rule for alimony, stating that, for reasons orally ■assigned, the court was of the opinion that under the law and the evidence plaintiff was entitled to alimony to the extent it was then .•granted. It ordered and decreed that the rule for alimony be made absolute in so far only as to order defendant to pay to his wife, the plaintiff alimony pendente lite at the rate of thirty-five ■dollars per month from December 23, 1895. It further ordered and ■decreed that the rule as to the claim for alimony prior to the institution of the existing claim be discharged, and that, in other respects, •it be dismissed as in the case of non-suit. From this judgment ■plaintiff appealed and it is this appeal which defendant has moved to ■dismiss on the grounds stated.
In plaintiff’s second suit, filed November 25, 1891, she prayed for ¡alimony to date from the 22d day of April, 1874. On exception, that portion of this demand as claimed alimony prior to the suit then ■existing was dismissed. This ruling left the demand for alimony as from the date of judicial demand (December 4, 1891) in the second suit, still standing. The matter was not disposed of until January 20, 1896. At that time her claim for alimony amounted to a sum in excess of that required to give this court jurisdiction on appeal from a judgment adverse to the claimant. The wife had the right to have ■her claim passed upon as presented. If held good it would date back from the judicial demand in the suit.
Article 148 of the Civil Code declares that “if the wife has not a sufficient income for her maintenance during the suit for separation, the judge shall allow her a sum proportioned to the means of the husband.” A delay in bringing the rule to trial does not work a forfeiture of the allowance. The husband could force the trial if he chose. Our law relatively to alimony pendente lite does not materially differ from that of other States.
Bishop on Marriages and Divorce, Vol. 2, Sec. 424, says: “Alimony pendente lite is commonly made by the terms of the order itself to commence from the return of the citation. This is the true rule, for till then the wife may be considered as able to obtain subsistence on the credit of her husband. But it may be directed to begin earlier or later * * * Sec. 425.” “The temporary ali
In American and English Encyclopedia of Law, verbo Alimony, p. 477, under the heading “When alimony pendente lite ceases,” it is stated: “ Alimony pendente lite may begin as soon as the husband is in court, and if the court does not annul the decree it continues as long as the suit is pending, but ceases when the suit is dismissed.” A number of authorities are cited in a foot note under this heading to the effect that such alimony may be made to take effect from the beginning of the suit. In Swearingen vs. Swearingen, 19 Ga. 267, Lumpkin, judge, said: “ Was it error in the court to make the allowance of alimony to relate back to the commencement of the suit. We see no objection to this. It is usual and proper in such cases.”
As the wife had at the trial of the rule the legal right to present her-demand for alimony as one dating from judicial demand, we think so far as the question of appeal is dependent upon the amount in controversy the motion for dismissal herein is not well taken. •
The next objection urged is that the judgment is interlocutory in its character and does not work irreparable injury. From certain standpoints the judgment is interlocutory. It may, after having been granted, be modified or annulled by changing conditions by summary motion or petition in the original cause, not by a new proceeding (Bishop on Marriage and Divorce, Sec. 438), or may, after having been refused, be renewed and allowed, but none the less it may, under some circumstances, become res judicata and preclude the parties from going behind the decree in reference to it unless appealed from. Thus we find in Frazier-Herman, under Art. 269 of the Code Napoleon, the following decision noted:
“ Jugé que si le conjoint demandeur n’a point appelé du jugement provisoire qui a déterminé le chiffre de la provision alimentaire que doit lui payer 1’autre époux pendant la durée du proeés il ne peut ensuite sur l’appel du jugement definitif demander qu’une allocution plus considérable lui soit accorded. Douai, 19 Novembre, 1846 (S. 48, 2, 522, P. 48, 2490). See on this point Imhof vs. Imhof, 45 An. 717.
An appeal from the main judgment would not carry up this particular order rendered prior thereto on a special rule. We think that the rejection by a court of a wife’s claim for alimony is unquestionably irreparable. We do not know how, if erroneous, it could be repaired, unless through appeal.
In this State an application of that kind rests upon, sections of the Oivil Oode and are controlled by the judicial discretion of the court. We are of the opinion that the appeal taken in this case should not be dismissed.
The appeal is maintained.
Opinion on the Merits
On the Merits.
Appellee has asked no amendment of the judgment. It can not therefore be altered to the prejudice of the appellant. We are to inquire whether there be anything to the prejudice of the appellant in the judgment. We are inclined to believe that in fixing the date from which it accorded alimony as of the day of the trial of the rule, the court was following what it conceived to be an inflexible rule of action as having been announced by this court in Suberville vs. Adams, 47 An. 68, to the effect that “ in al’l cases where a wife who has brought a suit for separation from bed and board from her husband demands alimony pendente lite, it is part of her case to establish affirmatively that she has during the whole period for .which alimony is asked remained constantly at the domicile assigned her,
It will be seen that in case there was an utter absence of any assignment of a residence to the wife; also that the husband had made a direct attempt to offer evidence in rebuttal to establish that fact, which was an important one in the determination of the relations of the parties in that particular case. The ease came to us under the gravest charges against the chastity of the wife sought to be shown. “We dealt with the matter upon the hypothesis only that the plaintiff might have some evidence to support his charges — not that there was any actually produced. We say this in justice to the defendant in that case whose claim was that the charges against her were totally groundless and the result of a conspiracy between her husband and others against her. In the case at bar there was an assignment by the court of a residence to the wife and the case comes to us thoroughly free from complaint of any kind by the husband against her. There was nothing in the pleadings and nothing in the offer of the testimony by the husband in the District Court calling in question the fact of her having conformed to the orders of the court. The husband presents that question tardily when he raises it before us on appeal. We must presume, as matters stand, that he did not conceive the wife to have been at fault in this respect. We are of ihe opinion that Art. 148 of the Civil Code must be read (subject to exceptional eases) in connection with Art. 147, which declares that the wife shall prove her residence “as often as she may be required to do so.”
This court has not been inclined to construe these articles with the rigidity which defendant’s counsel contends for. Jolly vs. Weber, 36 An. 678.
The law designs that the wife shall be subjected to the supervision
We think the District Court erred in fixing as the date from which alimony should be made to commence (if the situation of the parties was such as otherwise to call for it) as of the day upon which its judgment was rendered, but that it should have commenced to be exigible from judicial demand in the suit filed 25th November, 1891, in the District Court. The District Court has not passed upon the pecuniary situation of the parties during that period, and we are not satisfied with the condition of the record on that subject.
For the reasons herein assigned it is hereby ordered, adjudged